Kerala High Court
Sneha Vijayan vs State Of Kerala on 30 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:7208
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
WP(CRL.) NO. 1392 OF 2024
PETITIONER:
SNEHA VIJAYAN, AGED 27 YEARS, W/O RAJ KIRAN K,
SREERASI, CHATHANMUKKU, PACHAPOIKA, PATHIRAYADU,
THALASSERY, KANNUR, PIN - 670306.
BY ADVS.
M.H.HANIS
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
ANN MARY ANSEL
SINISHA JOSHY
RIA ELIZABETH T.J.
SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION,KANNUR DISTRICT, PIN - 672002
3 THE DISTRICT POLICE CHIEF,
CIVIL STATION,KANNUR CITY, PIN - 670002
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4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, ERNAKULAM DISTRICT, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL PRISON, VIYYUR,
THRISSUR DIST, PIN - 670004
BY ADV. SRI. K.A. ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 30.01.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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"C.R."
JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of Raj Kiran K. ('detenu' for the sake of
brevity) and her challenge in this Writ Petition is directed against Ext.P1
order of detention dated 22.11.2024 passed by the 2nd respondent under
Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007
('KAA(P) Act' for brevity). The said order was approved by the Government
vide order No.SSA2/252/2024-Home dated 30.11.2024.
2. The records reveal that a proposal was submitted by the
District Police Chief, Kannur City on 07.10.2024 seeking initiation of
proceedings against the petitioner's husband under the KAA(P) Act before
the jurisdictional authority, the 2nd respondent. For the purpose of
initiation of the said proceedings, the detenu was classified as a 'known
rowdy' as defined under Section 2p(iii) of the KAA(P) Act. Altogether 5
cases in which the petitioner's husband was involved have been
considered by the detaining authority for passing the impugned order of
detention and the details of the said cases are given below:-
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Sl. Offences involved Present
Crime No. Police Station Crime Date status of
No. under Sections
the case
143, 147, 341, 323,
1 38/2022 Pinarayi 30.01.2022 Pending trial
325 r/w 149 IPC
3 & 5 of ES Act &
296/2023 10.07.2023 120B, 201, 212 r/w Under
2 Valayam investigation
34 IPC
448, 294(b), 506,
Under
3 1009/2023 Koothuparambu
05.11.2023 323 r/w 34 IPC investigation
Atholy 395 r/w 34 IPC Pending trial
4 78/2024 12.02.2024
126(2), 115(2),
117(2). 333 r/w 3(5) Under
5 353/2024 Pinarayi 17.09.2024 investigation
of BNS
3. The case registered regarding the last prejudicial activity is
crime No.353/2024 of Pinarayi Police Station, alleging the commission of
offences punishable under Sections 126(2), 115(2), 117(2), and 333 r/w
3(5) of BNS and the detenu is arrayed as the 2nd accused in the said case.
4. We heard Sri. M.H. Hanis, the learned counsel appearing for
the petitioner and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P1 order is passed without proper application of mind and without
adhering to the procedural formalities mentioned under the KAA(P) Act.
The learned counsel urged that there is non-compliance with the
procedure mentioned under Section 7(2) of the KAA(P) Act. According to
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the counsel, though the grounds of detention, specifying the details of the
cases reckoned for passing the impugned order was furnished to him, the
legible copies of the documents pertaining to the case registered with
respect to the last prejudical activity were not served on him. According to
the counsel, the said lapse on the part of the detaining authority
prejudiced him as he could not file an effective representation against the
detention order before the Advisory Board.
6. In response, the learned Government Pleader submitted that
the order of detention was passed after complying with all the necessary
legal formalities and after proper application of mind. According to the
learned Government Pleader, there is no delay in mooting the proposal for
initiation of proceedings and in passing the order of detention. Moreover,
he would submit that the copies of all the relevant records and the
grounds of detention were furnished to the detenu and the detenu was
informed of his right to file representation against the detention order
before the Government as well as the Advisory Board.
7. From the rival contentions raised, it is decipherable that the
main dispute revolves around is regarding the compliance of the procedure
mentioned under Section 7(2) of the KAA(P) Act. Undisputedly, when a
person is arrested in pursuance of a detention order, it is obligatory on the
part of the arresting officer to supply a copy of the said order to the
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detenu. Furthermore, Section 7(2) of the KAA(P) Act, makes it mandatory
that the grounds of detention shall be furnished to the detenu, specifying
the instances of offences with copies of relevant documents. Moreover,
the detenu must be apprised of his right to file representation against the
detention order before the Government as well as the Advisory Board.
Only when copies of relied-upon documents are duly served, the detenu
would get an effective opportunity to file a representation before the
Advisory Board.
8. As already mentioned the main grievance of the petitioner is
that the copies of the relied-upon documents served on the detenu were
illegible. Though such a contention was raised, a perusal of the original
records of which the copies were served on the detenu which was made
available to us by the learned Government Pleader at the time of hearing
shows that the detenu had signed a written acknowledgment endorsing
that he had received legible copies of all documents. However, the learned
counsel submitted that the said endorsement is incorrect and the copies
furnished to the detenu were actually not legible. Since the endorsement
is doubted, this Court verified the original documents on which the
endorsement is made. On verification of the said documents, we are
convinced that some of those documents are not legible. Moreover, a
perusal of the representation, made by the detenu before the Advisory
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Board, reveals that in the said representation also it is mentioned that the
copy of the FIS, the copy of the mahazar etc., furnished to him are not
legible. Therefore, the detenu was handicapped in filing an effective
representation before the Advisory Board as the copies of the relied-upon
documents served on him are illegible.
9. The obligation of the detaining authority to furnish legible
copies of relied-upon documents to the detenu is not a mere formality.
Only when the said procedure is scrupulously complied with, the detenu
can file an effective representation before the Advisory Board and the
Government. The right of the detenue to file an effective representation
before the Government as well as the Advisory Board is a constitutional
right under Article 22(5) and also a statutory right. Therefore, it is the duty
of the detaining authority to ensure that the copies of the impugned order
as well as the relevant documents which are furnished to the detenu at
the time of effecting his arrest are legible so as to enable him to approach
the Advisory Board as well as the Government, to make an effective
representation.
10. The learned counsel further submitted that the last case
reckoned by the detaining authority ought not to have been reckoned, as
the same will not come within the purview of a qualified case. In order to
buttress the said contention, the learned counsel submitted that the mere
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registration of FIR alone is not sufficient to treat a case which is under
investigation as a qualified one, but something more is necessary so as to
record the objective as well as subjective satisfaction. According to the
counsel, as the copies including the FIS and mahazar are not legible, it is
highly suspicious as to how the detaining authority arrived at a conclusion
that the accused's role in the last prejudicial activity is prima facie
established and how the detaining authority arrived at the required
subjective and objective satisfaction.
11. It is trite that something more than mere registration of an
FIR is required to reckon a case, that is under investigation, for the
purpose of passing a detention order. In other words, apart from the FIR,
there must be some additional materials to make a case qualified to be
reckoned for passing a detention order. As already discussed, on
verification by the Court, it is revealed that the copy of the records,
including vital documents like FIS, mahazar etc., verified by the detaining
authority during the course of its proceedings are not legible. The copies
of the said documents furnished to the detenu are also established to be
illegible. Therefore, the objective as well as the subjective satisfaction
arrived at by the detaining authority is apparently vitiated. As rightly
pointed out by the learned counsel for the petitioner, if the case registered
with respect to the last prejudicial activity is eschewed from consideration,
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there would be a long delay between the registration of the last qualified
case and the order of detention. On the said ground, Ext.P1 order
warrants interference.
12. The Hon'ble Supreme Court in State of Manipur v.
Buyamayum Abdul Hanan [2022 SCC online SC 1455] while considering
a detention order passed under PITNDPS Act held that:
"The right of personal liberty and individual freedom which is
probably the most cherished is not, in any manner, arbitrarily to be
taken away from him even temporarily without following the
procedure prescribed by law and once the detenu was able to satisfy
while assailing the order of the detention before the High Court in the
exercise of jurisdiction Article 226 of the Constitution holding that the
grounds of detention did not satisfy the rigors of proof as a
foundational effect which has enabled him in making effective
representation in assailing the order of detention in view of the
protection provided under Article 22(5) of the Constitution the same
renders the order of detention illegal."
13. In the case at hand, it is established that the copies supplied
on the detenu were not legible making him incapacitated to file an
effective representation. The said serious lapse is a ground to interfere
with the impugned order. An order of detention, under KAA(P) Act has
wide ramifications as far as the personal as well as the fundamental rights
of an individual are concerned. Therefore, the detaining authority should
have acted with much alacrity in ensuring that all the procedural
formalities are adhered to.
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14. In the result, this Writ Petition is allowed and Ext.P1 order of
detention is set aside. The Superintendent of Central Prison, Viyyur,
Thrissur is directed to release the detenu, Sri. Raj Kiran K. forthwith, if his
detention is not required in connection with any other case.
The Registry is directed to communicate the order to the
Superintendent of Central Prison, Viyyur, Thrissur forthwith.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
DCS/ncd
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APPENDIX OF WP(CRL.) 1392/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER O.DCKNR/12861/2024-SS1
DATED 22.11.2024 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
28.11.2024 SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE ACKNOWLEDGMENT CARD
EVIDENCING THE RECEIPT OF EXT P2 ON 30.11.2024
Exhibit P4 A TRUE COPY OF THE ORDER OF APPROVAL NO HOME
SSA2/252/2024- HOME DATED 30.11.2024 OF THE 1ST
RESPONDENT
Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED
28.11.2024 SUBMITTED BY THE PETITIONER BEFORE
THE 4TH RESPONDENT
Exhibit P6 A TRUE COPY OF THE ACKNOWLEDGMENT CARD
EVIDENCING THE RECEIPT OF EXT P5, DATED
29.11.2024
